Com. v. Johnson, C. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER JOHNSON :
:
Appellant : No. 343 EDA 2018
Appeal from the Judgment of Sentence December 20, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008525-2016
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED APRIL 06, 2020
Appellant, Christopher Johnson, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his bench
trial convictions for resisting arrest, possession of a firearm prohibited,
firearms not to be carried without a license, and carrying firearms in public in
Philadelphia.1 We affirm.
In its opinion, the trial court sets forth the relevant facts of this case, in
part, as follows:
On August 16, 2016, between 10:40 a.m. and 10:45 a.m.,
Philadelphia Police Officer Joseph Rauchut and his partner,
Officer [Paul] Sanchez, received a radio call directing them
to the 1200 block of Lycoming Street for a person with a
gun. The call described the suspect as a Hispanic male
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 5104, 6105(a)(1), 6106(a)(1), and 6108, respectively.
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wearing a green tee shirt, blue jeans, and possibly high on
narcotics. Officer Rauchut testified that the location is in the
25th police district which is known to be a high-crime area
with high drug activity and extreme violence. While
responding to the call at Lycoming Street and Old York
Road, Officer Rauchut spoke with another officer who
advised that a civilian reported the suspect to be traveling
northbound on Old York Road.
After surveying the surrounding area for approximately four
minutes, Officer Rauchut observed…Appellant in the middle
of the highway on the 1300 block of Lycoming Street.
Officer Rauchut testified that…Appellant was standing
outside of a parked car and was yelling at a man who was
sitting inside the parked car. Appellant was sweating
profusely and had “veins popping out of his neck.” The man
in the car appeared “confused.” …Appellant was wearing a
navy-blue shirt, blue jeans, and a sweatshirt wrapped
around his waist. The officers then turned down Lycoming
Street in a marked patrol car. As the officers approached,
the patrol car’s sirens and lights were off.
(Trial Court Opinion, filed May 30, 2019, at 3) (internal citations to record
omitted). The officer’s observations of Appellant, training, and four years’
experience as a police officer entirely in the 25th police district, convinced
Officer Rauchut that Appellant was under the influence of phencyclidine
(“PCP”) or synthetic marijuana (“K2”).
The officers exited the patrol vehicle, without guns drawn. Officer
Rauchut said to Appellant, “Hey, what’s going on, man? You want to come
over to my car?” Appellant complied and approached the car. As Appellant
walked toward the car, Officer Rauchut noticed a bulge at Appellant’s
waistband, where a sweatshirt was wrapped around his waist. Based upon
his training and experience, Officer Rauchut believed the bulge in Appellant’s
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waistband was a gun.
The trial court opinion continues:
… Officer Rauchut asked…Appellant to place his hands on
the vehicle in order to conduct a protective search. Despite
repeated requests, …Appellant refused to place his hands on
the car and instead repeatedly held them about a foot above
the front of the officers’ patrol car. Officer Rauchut then
grabbed…Appellant’s arm to place it behind his back
wherein…Appellant reached into his waistband and grabbed
a gun.
(Id. at 4) (internal citations to record omitted). Officer Rauchut attempted to
pry the gun from Appellant’s hand and simultaneously apprehend Appellant.
Appellant physically resisted Officer Rauchut’s grasp for approximately 45
seconds. Meanwhile, Appellant repeatedly screamed at the officers that he
did not want to go back to jail. Appellant threatened the officers, saying, “Get
my hands off the gun, see what happens.” When the officers instructed him
to stop resisting, Appellant responded, “You’re going to have to kill me.”
Eventually, Officer Rauchut placed Appellant in a bear hug and isolated the
hand in which Appellant held the gun, allowing Officer Sanchez to take the
gun from Appellant. A third officer, Officer John Durando, approached to
assist. Based on his observation of Appellant’s struggle with Officers Rauchut
and Sanchez, his training, and his five and one-half years’ experience as a
police officer, Officer Durando also believed Appellant was under the influence
of narcotics or possibly PCP or K2. Officer Durando tased Appellant, and the
officers were then able to arrest Appellant.
Procedurally, Appellant filed a motion to suppress the firearm on May 1,
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2017. On July 24, 2017, the court conducted a suppression hearing and
denied Appellant’s motion. That same day, Appellant proceeded to a bench
trial, and the court convicted Appellant of one count each of resisting arrest,
possession of a firearm prohibited, firearms not to be carried without a license,
and carrying firearms in public in Philadelphia. The court sentenced Appellant
on December 20, 2017, to an aggregate term of ten (10) to twenty (20) years’
incarceration.
On January 16, 2018, Appellant filed a timely notice of appeal. The
court ordered Appellant on January 18, 2018, to file a concise statement of
errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant complied on
February 26, 2018, following an extension. On January 19, 2019, Appellant
filed in this Court an application for remand to allow him to file a supplemental
Rule 1925(b) statement. This Court granted Appellant’s application and
remanded to the trial court on February 6, 2019. On February 26, 2019,
Appellant filed a supplemental concise statement.
Appellant raises two issues for our review:
DID NOT THE TRIAL COURT ERR BY FAILING TO SUPPRESS
THE GUN SEIZED FROM APPELLANT WHERE HE WAS
STOPPED, DETAINED, SEARCHED, AND ARRESTED IN THE
ABSENCE OF REASONABLE SUSPICION OR PROBABLE
CAUSE?
WAS NOT THE EVIDENCE INSUFFICIENT TO FIND
APPELLANT GUILTY BEYOND A REASONABLE DOUBT OF THE
OFFENSE OF RESISTING ARREST, WHERE HE WAS
UNLAWFULLY STOPPED, DETAINED, SEARCHED AND
ARRESTED, AND POLICE WERE NOT EFFECTING A LAWFUL
ARREST OR ANY OTHER DUTY AS REQUIRED BY 18
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PA.C.S.A. § 5104 WHEN APPELLANT ALLEGEDLY VIOLATED
[SECTION] 5104?
(Appellant’s Brief at 4).
In his issues combined, Appellant argues the police officers stopped him
based on a flash report lacking sufficient corroboration. Appellant asserts the
flash description was vague, as it did not describe his height, weight, and facial
hair or tattoos. Appellant avers his navy-blue shirt did not match the green
shirt provided in the flash. Appellant claims the officers did not observe indicia
of criminal activity, such as violence or a crowd, when they encountered him.
Appellant maintains that the facts of having a sweatshirt around Appellant’s
waist, a sweaty appearance, and protruding neck veins do not suggest
criminality or abuse of drugs. Appellant adds that yelling at an individual in a
parked car also does not suggest criminal activity is afoot. Appellant stresses
the officers saw the bulge at his waist only after he complied with their demand
to approach. Appellant suggests the trial court incorrectly stated in its opinion
that the officers exited their vehicle after they told Appellant to walk toward
them. Appellant compares Officer Rauchut’s testimony that the officers exited
the patrol vehicle before they commanded Appellant to approach the car.
Appellant contends the officers unlawfully detained him when they exited the
patrol vehicle and ordered Appellant to walk toward them. Appellant insists
the officers did not have reasonable suspicion criminal activity was occurring
until after he approached them. As a result, Appellant contends the officers’
recovery of the gun from Appellant’s person was unlawful.
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Appellant adds the Commonwealth failed to prove the officers lawfully
arrested Appellant. Appellant contends the officers lacked reasonable
suspicion to search Appellant and probable cause to arrest him. Appellant
asserts the trial evidence was insufficient to convict him of resisting arrest.
For these reasons, Appellant concludes this Court should vacate the judgment
of sentence. We disagree.
Appellate review of an order that denied a motion to suppress evidence
is as follows:
We may consider only the Commonwealth’s evidence and so
much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the record supports the factual findings of
the trial court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
An appellate court, of course, is not bound by the
suppression court's conclusions of law.
Commonwealth v. Luczki, 212 A.3d 530, 541-42 (Pa.Super. 2019) (quoting
Commonwealth v. Arter, 637 Pa. 541, 546-47, 151 A.2d 149, 153 (2016)).
“It is within the suppression court’s sole province as factfinder to pass on the
credibility of witnesses and the weight to be given their testimony.” Luczki,
supra at 542 (quoting Commonwealth v. Clemens, 66 A.3d 373, 378
(Pa.Super. 2013)).
The Fourth Amendment to the United States Constitution
and Article I, Section 8 of the Pennsylvania Constitution
guarantee the right of the people to be secure in their
persons, houses, papers, and possessions from
unreasonable searches and seizures. “To secure the right
of citizens to be free from unreasonable search and seizure,
courts in Pennsylvania require law enforcement officers to
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demonstrate ascending levels of suspicion to justify their
interactions with citizens to the extent those interactions
compromise individual liberty.” Commonwealth v.
Hampton, 204 A.3d 452, 456 (Pa.Super. 2019). Because
interactions between law enforcement and the general
citizenry are widely varied, search and seizure law looks at
how the interaction is classified and if a detention has
occurred.
Our Supreme Court in Commonwealth v. Adams, ___ Pa.
___, ___, A.3d 1195, 1199-1200 (2019) recently reiterated
the general levels or classifications of contacts between the
police and the citizenry and reviewed long-standing
precedent on the topic as follows:
The first is a mere encounter, sometimes referred to
as a consensual encounter, which does not require the
officer to have any suspicion that the citizen is or has
been engaged in criminal activity. This interaction
also does not compel the citizen to stop or respond to
the officer. A mere encounter does not constitute a
seizure, as the citizen is free to choose whether to
engage with the officer and comply with any requests
made or, conversely, to ignore the officer and
continue on his or her way. The second type of
interaction, an investigative detention, is a temporary
detention of a citizen. This interaction constitutes a
seizure of a person, and to be constitutionally valid
police must have a reasonable suspicion that criminal
activity is afoot. The third, a custodial detention, is
the functional equivalent of an arrest and must be
supported by probable cause. A custodial detention
also constitutes a seizure.
No bright lines separate these types of [interactions],
but the United States Supreme Court has established
an objective test by which courts may ascertain
whether a seizure has occurred to elevate the
interaction beyond a mere encounter. The test, often
referred to as the “free to leave test,” requires the
court to determine whether, taking into account all of
the circumstances surrounding the encounter, the
police conduct would have communicated to a
reasonable person that he was not at liberty to ignore
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the police presence and go about his business.
[W]henever a police officer accosts an individual and
restrains his freedom to walk away, [the officer] has
“seized” that person.
Id. at ___, 205 A.3d at 1199-1200 (most internal citations
and quotation marks omitted). Whether a seizure has
occurred, under the circumstances related in the undisputed
testimony at a suppression hearing, is a question of law
involving a plenary scope of review. Commonwealth v.
Au, 615 Pa. 330, 337, 42 A.3d 1002, 1006 (2012). Our
standard of review regarding questions of law is de novo.
Luczki, supra at 542-43 (some internal citations and quotation marks
omitted).
When initially evaluating the level of interaction between law
enforcement and a citizen to determine if a seizure
occurred, “courts conduct an objective examination of the
totality of the surrounding circumstances.”
Commonwealth v. Lyles, 626 Pa. 343, 350, 97 A.3d 298,
302 (2014).
The totality-of-the-circumstances test is ultimately
centered on whether the suspect has in some way
been restrained by physical force or show of coercive
authority. Under this test, no single factor controls
the ultimate conclusion as to whether a seizure
occurred—to guide the inquiry, the United States
Supreme Court and this Court have employed an
objective test entailing a determination of whether a
reasonable person would have felt free to leave or
otherwise terminate the encounter. [W]hat
constitutes a restraint on liberty prompting a person
to conclude that he is not free to “leave” will vary, not
only with the particular police conduct at issue, but
also with the setting in which the conduct occurs.
This Court and the United States Supreme Court have
repeatedly held a seizure does not occur where
officers merely approach a person in public and
question the individual or request to see identification.
Officers may request identification or question an
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individual so long as the officers do not convey a
message that compliance with their requests is
required. Although police may request a person’s
identification, such individual still maintains the right
to ignore the police and go about his business.
Id. at 350-51, 97 A.3d at 302-03 (internal citations and
quotation marks omitted).
To decide whether a seizure has occurred, a court
must consider all the circumstances surrounding the
encounter to determine whether the demeanor and
conduct of the police would have communicated to a
reasonable person that he…was not free to decline the
officer’s request or otherwise terminate the
encounter. A variety of factors may influence this
determination, including the threatening presence of
several officers, the display of a weapon by an officer,
some physical touching of the person of the citizen, or
the use of language or tone of voice indicating that
compliance with the officer’s request might be
compelled. As our High Court has explained, subtle
factors as the demeanor of the police officer, the
location of the confrontation, the manner of
expression used by the officer in addressing the
citizen, and the content of the interrogatories or
statements must be considered.
Hampton, supra at 457. In addition:
This Court has also set forth the following non-
exclusive list of factors:
the number of officers present during the
interaction; whether the officer informs the
citizen [he is] suspected of criminal activity; the
officer’s demeanor and tone of voice; the
location and timing of the interaction; the visible
presence of weapons on the officer; and the
questions asked. Otherwise inoffensive contact
between a member of the public and the police
cannot, as a matter of law, amount to a seizure
of that person.
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Commonwealth v. Newsome, 170 A.3d 1151, 1155
(Pa.Super. 2017) (internal citations omitted). Our Supreme
Court has also stated:
We recognize the conceptual difficulties inherent in
the administration of the reasonable-person standard.
Although the test is cast in objective terms, absent
empirical proofs, there remains substantial room for
reasonable disagreement concerning how such a
hypothetical person might feel in any given set of
circumstances. Such differences have been
manifested, at both the federal and state level, in
many divided opinions on the subject. Nevertheless,
the High Court has settled on an approach allocating
very modest weight to the possibility for psychological
coercion arising from a fairly wide range of police
conduct which may be regarded as being appropriate
to and inherent in the circumstances facilitating the
interaction. Cf. Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment §
9.4(a), at 425 (4th ed. 2004) (observing that “the
confrontation is a seizure only if the officer adds to
those inherent pressures by engaging in conduct
significantly beyond that accepted in social
intercourse[,]” which include moral and instinctive
pressures to cooperate).
Au, supra at 338-39, 42 A.3d 1007-08 (most internal
citations omitted). Thus, all law enforcement
communications with a citizen do not automatically
constitute detentions. Lyles, supra at 354, 97 A.3d at 304-
05. With respect to the show of authority needed for a
detention, the circumstances must present some level of
coercion, beyond the officer’s mere employment, that
conveys a demand for compliance or threat of tangible
consequences from refusal. Commonwealth v. Young[,
E.], 162 A.3d 524, 529 (Pa.Super. 2017) (citing Lyles,
supra at 353-54, 97 A.3d at 304).
An investigative detention, unlike a mere encounter,
constitutes a seizure of a person and thus activates
the protections of Article 1, Section 8 of the
Pennsylvania Constitution. To institute an
investigative detention, an officer must have at least
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a reasonable suspicion that criminal activity is afoot.
Reasonable suspicion requires a finding that based on
the available facts, a person of reasonable caution
would believe the intrusion was appropriate.
* * *
Reasonable suspicion exists only where the officer is
able to articulate specific observations which, in
conjunction with reasonable inferences derived from
those observations, led him reasonably to conclude,
in light of his experience, that criminal activity was
afoot and that the person he stopped was involved in
that activity. Therefore, the fundamental inquiry of a
reviewing court must be an objective one, namely,
whether the facts available to the officer at the
moment of intrusion warrant a [person] of reasonable
caution in the belief that the action taken was
appropriate.
Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super.
2005) (internal citations omitted). The question of whether
reasonable suspicion existed at the time of an investigatory
detention must be answered by examining the totality of the
circumstances to determine whether there was a
particularized and objective basis for suspecting the
individual stopped of criminal activity.
In making this determination, we must give due
weight…to the specific reasonable inferences the
police officer is entitled to draw from the facts in light
of his experience. Also, the totality of the
circumstances test does not limit our inquiry to an
examination of only those facts that clearly indicate
criminal conduct. Rather, even a combination of
innocent facts, when taken together, may warrant
further investigation by the police officer.
Commonwealth v. Young[, R.], 904 A.2d 947, 957
(Pa.Super. 2006), appeal denied, 591 Pa. 664, 916 A.2d 633
(2006) (internal citations and quotation marks omitted).
“[W]hether the defendant was located in a high crime
area…supports the existence of reasonable suspicion.”
Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa.Super.
2009) (en banc), appeal denied, 605 Pa. 694, 990 A.2d 727
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(2010) (internal citations omitted).
Luczki, supra at 543-45 (some internal citations and quotation marks
omitted).
“Probable cause is made out when the facts and
circumstances which are within the knowledge of the officer
at the time of the arrest, and of which [the officer] has
reasonably trustworthy information, are sufficient to
warrant [an officer] of reasonable caution in the belief that
the suspect has committed or is committing a crime.”
Commonwealth v. Thompson, 604 Pa. 198, 203, 985
A.2d 928, 931 (2009) (internal quotation marks omitted).
The question we ask is not whether the officer’s belief
was correct or more likely true than false. Rather, we
require only a probability, and not a prima facie
showing, of criminal activity. In determining whether
probable cause exists, we apply a totality of the
circumstances test.
Id. (emphasis in original) (internal citations and quotation
marks omitted). The officer’s training and experience are a
factor in determining probable cause but relevant to the
issue only if there is a nexus between those skills and the
search and seizure of the person and/or evidence. Id. at
210, 985 A.2d at 935.
“Although cases involving similar or comparable seizure
determinations may serve as guideposts, a suppression
court must independently employ the totality-of-the-
circumstances test in determining whether a seizure
occurred.” Lyles, supra at 354, 97 A.3d at 305. See, e.g.,
id. (holding that no single factor controls in seizure-of-
person analysis; police officer’s request for identification
alone does not raise escalatory inference of detention;
courts must make independent examination of totality of
circumstances surrounding interaction to determine if
seizure occurred; concluding no “seizure” occurred in
absence of credible evidence of physical restraint, weapons
used, blockade or obstruction of citizen’s ability to walk
away; tenor of interaction was not inherently coercive); Au,
supra (holding unrebutted testimony of officer established
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only mere encounter with Appellee had occurred, when
officer interacted with Appellee in public, did not activate
emergency lights, did not block Appellee’s car, did not
brandish weapon, make intimidating movement or
overwhelming show of force, threat, or command, or speak
in authoritative tone; use of officer’s headlights and
flashlight was in furtherance of officer’s safety and within
ambit of acceptable, non-escalatory factors); Newsome,
supra (holding defendant was not “seized” during his initial
interaction with officer, where officer responded to radio call
in marked cruiser and saw Appellee walk away from group
of males; officer exited his vehicle and told Appellee to
“come here,” but Appellee refused and continued to walk
away; officer then observed Appellee remove object and
place it in nearby flowerpot; object later recovered was
firearm); Young[, E.], supra (holding initial interaction
with Appellee was mere encounter, when three officers in
plainclothes exited an unmarked vehicle, approached
Appellee on public street and asked Appellee what he was
doing and whether he had anything on his person that could
harm officers; two brief questions constituted mere
encounter, as there was no restraint of Appellee’s liberty,
no physical force, and no show of authority or level of
coercion, beyond officer’s mere employment, to convey
demand for compliance or threat of tangible consequences
from refusal). Compare Adams, supra (holding
interaction between police officer and defendant was
investigative detention, where officer would not allow
defendant to leave his vehicle; officer did not simply request
that defendant stay in his car; instead, officer physically
closed car door and barred defendant’s exit; officer’s action
of physically closing door as defendant opened it
communicated demand to remain in car at that location;
officer’s acts constituted type of escalatory factor that
signals “seizure” by restraint of freedom); Commonwealth
v. Livingston, 644 Pa. 27, 174 A.3d 609 (2017) (plurality)
(holding interaction between police officer and defendant
was investigative detention, where defendant’s car was
already parked on side of interstate highway, and officer
pulled his patrol car alongside defendant’s car, with his
emergency lights activated, ostensibly under community
caretaking function, but officer was unable to articulate
specific and objective facts to suggest defendant needed
assistance); Hampton, supra (holding interaction between
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police officer and defendant was investigative detention,
where defendant drove his vehicle from roadway into church
field, and officer pulled her marked vehicle into field behind
defendant’s car, effectively blocking his exit, as defendant’s
vehicle was facing building so he could not travel forward).
Importantly, “The issue of whether an individual has been
seized is distinct from the issue of whether that seizure was
reasonable.” Hampton, supra at 458.
Luczki, supra at 545-46.
A challenge to the sufficiency of the evidence implicates the following
legal principles:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may
be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[finder] of fact while passing upon the credibility of
witnesses and the weight of the evidence produced, is free
to believe all, part or none of the evidence.
Jones, supra at 120-21 (quoting Commonwealth v. Bullick, 830 A.2d 998,
1000 (Pa.Super. 2003)).
Section 5104 of the Crimes Code defines resisting arrest or other law
enforcement as follows:
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§ 5104. Resisting arrest or other law enforcement
A person commits a misdemeanor of the second degree if,
with the intent of preventing a public servant from effecting
a lawful arrest or discharging any other duty, the person
creates a substantial risk of bodily injury to the public
servant or anyone else, or employs means justifying or
requiring substantial force to overcome the resistance.
18 Pa.C.S.A. § 5104.
Instantly, testimony at the suppression hearing revealed Officers
Rauchut and Sanchez were patrolling in Philadelphia in full uniform and in a
patrol car, when they received a flash report at approximately 10:45 a.m. The
report specified the suspect was a male with a gun, wearing a green t-shirt
and blue jeans, and possibly high on narcotics. The report also indicated the
suspect was near the 1200 block of Lycoming Street, a location the officers
knew was an area of high drug activity and extreme violence. Approximately
four minutes after receiving the flash report, the officers discovered Appellant
standing in the middle of street on the 1300 block of Lycoming Street. The
officers observed Appellant yelling at a man sitting inside a parked car;
Appellant was sweating profusely, and his neck veins were visibly engorged.
Appellant was wearing blue jeans and a navy-blue t-shirt, with a sweatshirt
wrapped around his waist. Based upon his years of experience as a police
officer and his observations of Appellant’s conduct, Officer Rauchut believed
Appellant was under the influence of illicit drugs.
During their initial interaction with Appellant, the officers approached in
the patrol vehicle, with the vehicle’s lights and siren off. Appellant correctly
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notes that the record shows the officers then exited their patrol vehicle before
speaking to him. Once outside the vehicle, Officer Rauchut said to Appellant,
“Hey, what’s going on, man? You want to come over to my car?” Appellant
complied and approached the patrol vehicle. That was the sum and substance
of their initial interaction.
This initial interaction between the officers and Appellant was limited,
informal, and carried all the hallmarks of a mere encounter. In detail, the
interaction occurred in daylight and on a public street. The interaction
involved no lights, guns, intimidating movement or potent show of force,
obstruction, or physical restraint. The officers were in full uniform and had
arrived in a marked police vehicle, both of which merely identified their
employment and conveyed no demand for compliance or threat of tangible
consequences from refusal. See Young, E., supra. Whether the officers
were inside or outside the patrol vehicle when they asked Appellant to
approach them, is of no moment. In either circumstance, the officers’ conduct
and limited contact with Appellant fell within the ambit of non-escalatory
conduct; and their initial interaction with Appellant was a mere encounter.
See Au, supra; Newsome, supra; Young, E., supra.
As Appellant approached the officers, Officer Rauchut observed a bulge
on Appellant’s waist, around which Appellant had wrapped a sweatshirt.
Based on his training and experience, Officer Rauchut believed the bulge was
a gun. As a result, Officer Rauchut asked Appellant to place his hands on the
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vehicle so the officers could perform a protective search, but Appellant refused
to comply. Although Officer Rauchut repeated the instruction several times,
Appellant remained obstinate and did not heed the directive. When Officer
Rauchut attempted to place Appellant’s arm behind his back to secure him,
Appellant reached into his waistband and grabbed a gun. Officer Rauchut and
Appellant struggled for nearly one minute until Officer Sanchez was able to
remove the gun from Appellant. Meanwhile, Officer Durando approached to
assist in apprehending Appellant. Based upon his observations and multiple
years of police service, Officer Durando believed Appellant’s behavior
exhibited signs of illicit drug use.
The nature of Appellant’s encounter with the officers escalated when he
approached the patrol vehicle and Officer Rauchut saw what he believed to be
a gun in Appellant’s waistband. At that point, Officer Rauchut attempted to
perform a protective search and asked Appellant to place his hands on the
patrol vehicle. Appellant’s prolonged refusal to comply prompted Officer
Rauchut to grab Appellant’s arm in an attempt to place the arm behind
Appellant’s back and effectuate the search. In addition to the appearance of
a firearm on Appellant’s person, several factors supported Appellant’s
detention, including: Appellant’s presence near the initial location referenced
in the flash report; Appellant’s appearance roughly matching the flash report
description (see Commonwealth v. Thomas, 179 A.3d 77 (Pa.Super. 2018)
(providing reasonable suspicion may arise even when suspect does not match
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flash report description exactly)); Appellant’s standing in the middle of the
road yelling at a person inside a parked car, along with his agitated and sweaty
physical condition leading Officer Rauchut to believe Appellant was under the
influence of drugs; Appellant’s apparent drug use and possession of a firearm
matching the flash report of an individual with a gun high on narcotics; and
Appellant’s presence in an area known for high drug activity and extreme
violence. Under the totality of the circumstances, the officers had reasonable
suspicion to search Appellant for a firearm on his person. See Foglia, supra;
Young, R., supra; Jones, supra. Additionally, Appellant’s interaction with
the police escalated further when Appellant pulled a gun out of his waistband.
Appellant’s possession of a gun in a high crime area, along with his reaching
for and holding it while the officers were attempting to search him, gave rise
to probable cause. See Thompson, supra. Upon our independent review of
the totality of the circumstances, we conclude the record supports the court’s
decision to deny Appellant’s suppression motion. See Luczki, supra;
Clemens, supra.
Regarding Appellant’s related sufficiency challenge, the police lawfully
arrested Appellant, for the reasons we have already discussed. Therefore,
Appellant’s sufficiency claim merits no relief. See Jones, supra; 18 Pa.C.S.A.
5104. Accordingly, we affirm.
Judgment of sentence affirmed.
President Judge Emeritus Stevens joins this memorandum.
Judge Stabile concurs in the result.
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J-A06019-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2020
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